Steven Centore, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 2, 2000
01a04637 (E.E.O.C. Nov. 2, 2000)

01a04637

11-02-2000

Steven Centore, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Steven Centore v. Department of Veterans Affairs

01A04637

November 2, 2000

.

Steven Centore,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A04637

Agency No. 932135

DECISION

Steven Centore (complainant) filed a timely appeal with this Commission

from a final decision (FAD) by the agency dated June 26, 2000,

finding that it was in compliance with the terms of the December 10,

1999 settlement agreement into which the parties entered.<1> See 29

C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

The Agency agrees to use its best efforts to amend the Employee's

employment records as expeditiously as possible to reflect his retirement

as an RN effective June 30, 1997, which is the date on which he is

entitled to an immediate retirement annuity. Any additional time on

the Agency's rolls necessitated by amending the Employee's records will

be designated as leave without pay. The Agency further agrees to make

any contributions necessary to effectuate the Employee's eligibility

for retirement....

The Agency agrees to use its best efforts to assist the Employee in

processing his application for retirement benefits....

The Agency agrees to pay the Attorney Six Thousand Dollars ($6,000.00)

in full settlement of all claims for fees, costs, and expenses incurred in

this case within sixty (60) days of the effective date of this Agreement.

By letters to the agency dated February 15, 2000 and May 1, 2000,

complainant alleged that the agency was in breach of the settlement

agreement, and requested that the agency specifically implement the

terms of the agreement. Specifically, in the February 15, 2000 letter,

complainant alleged that the agency failed to pay his attorney the agreed

upon six thousand dollars within sixty days of the date of the Agreement.

In the May 1, 2000 letter, complainant alleged that the agency failed

to comply with terms (4) and (6) in that despite repeated verbal and

written communications with the agency and OPM, complainant was not able

to verify information concerning the retirement and employment records.

In its June 26, 2000 FAD, the agency concluded that the settlement

agreement had not been breached. The agency only addressed the claim

raised in the February 15, 2000 letter, noting that a check for six

thousand dollars was issued to the attorney on February 14, 2000.

Although the agency acknowledged that this was a few days past the sixty

day time period, it noted that this delay was not a material breach

of the settlement agreement. The agency made no mention of the May 1,

2000 letter, nor of the breach allegations contained therein.

On appeal, complainant acknowledges that the six thousand dollar check

was received, and focuses instead on his allegations of breach due to

the agency's failure to implement terms (4) and (6). Specifically,

complainant noted that the agency breached the settlement agreement

because despite repeated communications with the agency and OPM, he has

been unable to verify whether: (1) the agency has properly completed

all of the preliminary paperwork regarding his employment records which

is a necessary prerequisite for complainant's retirement application;

(2) a properly completed retirement package (with all appropriate

contributions) has been sent by the agency to OPM; (3) OPM has received

all of the necessary paperwork and/or documentation from the agency;

and (4) any retirement issues remain unaddressed. While acknowledging

that no time period for completing the agreed upon tasks was specified,

complainant notes that a reasonable time period is presumed and that

the agency has not taking any steps to abide by terms (4) and (6) for

seven months. Complainant notes that the agency did not respond to his

May 1, 2000 notice of breach.

The agency's response again focuses solely on the issue of whether the

attorney received the agreed upon fees and costs. The agency also notes

that it did not receive a copy of the Notice of Appeal or a copy of the

appeal statement.

FINDINGS AND ANALYSIS

EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties, reached at

any stage of the complaint process, shall be binding on both parties.

The Commission has held that a settlement agreement constitutes a

contract between the employee and the agency, to which ordinary rules

of contract construction apply. See Herrington v. Department of Defense,

EEOC Request No. 05960032 (December 9, 1996). The Commission has further

held that it is the intent of the parties as expressed in the contract,

not some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(August 23, 1990). In ascertaining the intent of the parties with regard

to the terms of a settlement agreement, the Commission has generally

relied on the plain meaning rule. See Hyon v. United States Postal

Service, EEOC Request No. 05910787 (December 2, 1991). This rule states

that if the writing appears to be plain and unambiguous on its face,

its meaning must be determined from the four corners of the instrument

without resort to extrinsic evidence of any nature. See Montgomery

Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).

Turning first to complainant's claim that the agency breached the

agreement when it did not pay his attorney the agreed upon attorney's

fees and costs within the sixty day time period noted in the agreement,

we find that the agency correctly determined that this does not constitute

a breach of the agreement. We note that complainant himself appears

to have conceded this point in his appeal statement. Moreover, the

Commission has previously found substantial compliance with the terms of

a settlement agreement in cases where agencies have committed, in good

faith, a technical breach of a provision of the agreement which did not

undermine its purpose or effect. See Sortino v. United States Postal

Service, EEOC Request No. 05950721 (November 21, 1996), citing Baron

v. Department of the Treasury, EEOC Request No. 05930277 (September 30,

1993) (Two week delay in transfer of official and letter of regret rather

than letter of apology found to be substantial compliance). Here, it

is undisputed that the agency issued complainant's attorney a check for

the entire amount of the agreed upon attorney's fees and costs within

a few days of the expiration of the sixty day time period. The agency

noted that the delay was due to administrative processing and complainant

offered nothing to indicate that the agency acted in bad faith.

In regard to complainant's other allegations of breach, we note that

the settlement agreement did not include a specific date by which the

agency was to have complied with these terms. Commission precedent

holds, however, that a provision without time periods is generally

understood to require compliance within a reasonable amount of time.

See Gomez v. Department of Treasury, EEOC Request No. 05930921 (February

10, 1994). Here, complainant alleged that during the seven months since

the execution of the settlement agreement, he has repeatedly communicated

with the agency verbally and in writing, but has been unable to learn the

status of his retirement application or even if the agency has forwarded

the appropriate papers to OPM. The agency offered nothing to suggest

that it has done anything to attempt to carry out these terms of the

settlement agreement, much less that it has used its �best efforts� to

�expeditiously� do so. The agency offered no explanation as to why, after

seven months, it has not taken any steps to carry out these terms.<2>

Accordingly, we agree with complainant that the agency's failure to take

the actions required by the settlement agreement seven months after its

execution constitutes a breach of that agreement. We therefore REVERSE

the agency's finding that it did not breach the settlement agreement.

Complainant has requested specific performance of the settlement

agreement. Consequently, on REMAND, the agency shall comply with the

terms of the settlement agreement as ORDERED below.

ORDER

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall implement the terms of the settlement agreement entered

into with complainant on December 10, 1999. Such implementation shall

include, but is not limited to, providing complainant with a written

reply as to whether: (1) the agency has properly completed all of

the preliminary paperwork regarding his employment records which is

a necessary prerequisite for complainant's retirement application;

(2) a properly completed retirement package (with all appropriate

contributions) has been sent by the agency to OPM; (3) OPM has received

all of the necessary paperwork and/or documentation from the agency;

and (4) any retirement issues remain unaddressed. The agency shall

provide the Commission with proof of its implementation of the agreement,

as set forth below. This proof shall include, but is not limited to,

providing the Commission with a copy of the written response to the

above questions.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. � 1614.503(a). The complainant also has the right

to file a civil action to enforce compliance with the Commission's order

prior to or following an administrative petition for enforcement. See 29

C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action

for enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, you must name as the defendant in

the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

_November 2, 2000_________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 As stated above, the agency never responded to the May 1, 2000

notice of breach. However, as this breach notice was addressed to the

same individual and office as the February 15, 2000 breach notice, it

appears that complainant followed the appropriate process in notifying

the agency of his breach allegations. Furthermore, although the agency

contends that it did not receive complainant's Notice of Appeal or

appeal statement, the appeal statement includes a certificate of service

indicating that it was faxed to the appropriate office. Accordingly, we

find that complainant followed the appropriate regulations in notifying

the agency of his breach allegations and forwarding a copy of his appeal

statement to the agency.